voters who voted for the most numerous branch of the legislature vote also for the Members of Congress, and there was no exception in that condition there provided for.

In other words, the Constitution says who are qualified electors, and this bill is in the face, in my judgment, of this provision of the Constitution.

The States varied in the qualification for electors, sometimes for different State offices and county offices and various things, but they had the election of the members of the lower house of the legislature, the most numerous branch of the legislature, people who qualified for that, and that was generally of more interest back in that time than the other officers elected because they were the lawmakers, and they had qualified electors, and it varied in the different States; but whatever might be in one State the vote for Congress had to be the same regardless of whether another State followed suit or differed in its qualification for qualified electors to vote for Congress.

When the Constitution names who are qualified voters, then the legislature is powerless to add to it or take from it. That is fenced out, and the reasoning back of it was that it was highly important, if not absolutely necessary, to have that requirement because people were creating the Government and they didn't know what it was going to do in the way of national legislation.

Different groups of State, roughly classified seven Northern States and five Southern States, and their habits and institutions and laws were very much different, and the qualification for electors was different.

Many of the officers weren't elected by popular vote, so it is named in the Constitution, and Congress has no power to change the Constitution by an enactment creating a different standard nor to prohibit what the Constitution has accepted as qualified electors.

That section hasn't been amended. It has been discussed in various cases, but when you come down to section 4, we have powers to do particular things, which has been pointed out, I think, in a number of arguments, at least in the press, and that is dealing with the time, place, and manner of election. That is in section 4. I will get to it in a second here. This is what it says:

Times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law alter such a regulation, except the places of choosing Senators.

Now, what are they given power to do there? It is named. It isn't to regulate elections generally, but the times of elections, places of elections, and manner of holding elections.

They could be elected by the state at large, and it was done for a number of years. They could be elected by general election, by which they would be chosen, or at a particular place or particular day, and Congress could say they could have the power in regard to the manner of holding elections, at a particular place, held by particular persons, and under particular supervision, and that has no reference to the qualifications. That is dealt with separately. The two things are entirely separate.

Congress, for instance, has prescribed the date of the election, and it shall be by districts instead of from the State at large, having some exceptions in case the census comes along and the apportionment is

changed, and the extra person assigned to a State could be elected from the State at large.

They had that question involving the power of creating districts in one case from my State, and the legislature created congressional districts and combined two districts into one without apportionment according to the population of the district as one compared to the other.

That was brought up here and the Court held that the Federal Government had fixed the subject matter of elections, and it should be by districts and the legislature had the power to create the districts, and the suit went out the window because the courts had nothing to do with it. It was a legislative question.

Now, these were in the beginning, and in the beginning there was a great deal of opposition in the various State conventions to the Constitution. One of the ablest was in the State of Virginia, which at that time was a leading State in wealth and population and education, perhaps, in which the question was closely divided as between groups and factions, led by the ablest men of that period of time.

One only has to read the assaults made by Patrick Henry upon the Constitution for not conforming, as he thought, to the rights-and he was an original States right man, I think one of the ablest, and he spoke many times-in fact, I thought he spoke oftener and left less to his associates than was required in politics-but it was interesting to read his ideas and then read what has happened since the Constitution was framed.

In order to pass Virginia and several other States they had to promise to get a bill of rights attached to that Constitution. It didn't have any. The individual's rights weren't secure against the Government. It was due to those different situations, the larger States and the smaller States and the grouping of economic and social interest that existed to a certain extent. All those were powerful influences shaping the adoption. There was that provision that it should be adopted as among the States ratifying it and not adopted by those not ratifying. Provided nine States ratified it, it became effective and left the others out. In fact, it did leave some States out who afterward came in.

Now, in that situation among those 10 amendments was article 10 which expressly reserved to the States all powers not delegated to the Federal Government nor prohibited to the States by the Constitution. There it stands, no amendment to it, and the Civil War amendment doesn't destroy that, in my judgment.

The Congress was given power by the thirteenth amendment to carry its prohibition against any part of the territory having any slaves. It was a prohibition which the Federal Government couldn't authorize and the State Governments couldn't authorize.

But when it came to the fourteenth, discussing the power of the States to make laws that discriminated, it was the States and the laws by the States that were the object of that amendment. In other words, they couldn't frame a law for one class of people in the way of crime unless it brought every party in that class or in that orbit into the law and give them equal protection of the law in due process of law, of course, was a right to be heard and challenge any State law.

In other words, if the State should enact a law that the sheriff or constable could go out and arrest a man because he was a farmer and

not include others in that power of arrest, and a person was arrested under that, he could challenge that. He was denied protection. The law went down under the assaults of the citizens.

It never was contemplated that Congress could control the States in their local government machinery so long as government was a republican form of government.

Now, if I may, I would like to call attention to two or three cases that we have in mind as to this power residing in Congress to change the qualifications of members of the House and Senate and Presidential Electors.

In Minor v. Happersatt, which is cited, it was held that the voters did not derive their powers from the Federal Constitution. In that case a woman who was otherwise qualified, wanted to register and vote in one of the States-I believe it was in Missouri, perhaps and she litigated her rights about it. She claimed she could not be discriminated against; she was a citizen of the United States. And the Court rejected that and said she derived that right to vote-it was controlled by the States, subject only to the amendments on race, color and previous condition of servitude, and perhaps one other phase.

In Pirtle v. Brown, a Tennessee case, decided by the circuit court of appeals in 118 Fed. (2d) 218, and also reported in 139 ALR with a case note, it was again held that the voter derived his right to vote from the States; the right of qualification of the voters resided in the States.

The United States Supreme Court refused a writ of certiorari to review that case, thereby approving that case.

In Breedlove v. Suttles in the State of Georgia, that went to the United States Supreme Court, it was again declared that the right to vote was not a Federal right, but was a State right, and resided with the States.

Now, if the bill should pass, it would create a good deal of confusion, something which somebody at any time could carry to the United States Supreme Court for review, but in the meantime the great mass of citizens would not know where they were. They would not know where their rights were, and it would be extremely hazardous to guess, at the extent of the citizen who would have to litigate it-it could not be taken up except by litigation.

These cases-there is a case note in 82 L. Ed. of the United States Supreme Court in the Breedlove case, and a footnote to the Pirtle case in 139 ALR, cited in the brief; there are very elaborate case notes there, discussing the subject.

I think it is very important to note that in the early days a man was not admitted until he was identified by the State in which he lived sufficiently to manifest an interest and to understand its institutions, in measure, a least, and the principle of having the voter to be a taxpayer as a condition of voting, a condition of that kind is perfectly reasonable and it tends to encourage people to share the burdens of government, instead of to shun the burden of government and especially in Mississippi where it can only be used for educational purposes, not levied, except by the legislature, where it has no power to divert that poll-tax fund from the educational funds of the State.

Every man ought to be willing to assume some of the burdens. Therefore, I think the poll tax as a system, is a righteous system. I do not mean that they could not get along without it-nothing of that

kind-but a man who has got no interest in the government enough to pay 25 cens or 18 cents a month for the privilege of voting is just unpatriotic-it is just like unpatriotism.

As far as I am concerned I would like to see a system based on intelligence, character, and patriotism-those three things-and a citizen could not be a patriotic citizen in anything like the full sense of the word without contributing to the support of the government which gives him protection, and especially where it is educating his children free of charge.

Senator STENNIS. Before your time is up, Judge, if I may interrupt, Mr. Chairman, I wan to ask you a question or two and get your legal opinion on it.

If we grant the Congress now can enter this field of the qualifications for electors, if they can enter at all, they can prescribe what is not a qualification, and then they could prescribe what is a qualification, could they not?

Judge ETHRIDGE. Absolutely.

Senator STENNIS. And if we get into the affirmative side of that matter, do you think that they could say that a man who was a member of a labor union could not vote?

Judge ETHRIDGE. They would have a right to classify in that regard under the decisions that now exist-they classify them and not only prohibit any qualification the State might set up, but put up their own standard and could elect that, Senator, may I remind you, on such a basis that they could practically control the national legislation.

The CHAIRMAN. Do you mind if I interrupt here and ask this question?

Senator STENNIS. No.

The CHAIRMAN. Do you make no distinction between the elimination of a prerequisite and the imposing of prerequisites because a man might belong to a labor union? You do not mean to give that impression, do you, Judge?

Judge ETHRIDGE. I think if it was left to Congress to say, being a national body as far as the State and the people are concerned, it could change and make any classification that it deemed reasonable, and the court might support it, and anything which would be supported-and anything would be supported by the court ordinarily that had a reasonable relation to the government, proper government. The CHAIRMAN. Well, you have not heard-at least I have not, except from you that if you had your way you would impose not a poll tax but an intelligence test, also to the prerequisites of voting. This is no attempt to impose them. It is an attempt to eliminate them for everyone, not impose them on a special group, because they belong to a labor union or because of their color or creed or their nationality or their particular type or form of patriotism. It is an attempt to generally eliminate for all people one thing, poll taxes, as a prerequisite for voting.

Certainly, you admit a distinction between that and any idea that the Congress would impose on any special group a prerequisite, do you not?

Judge ETHRIDGE. The question, as I understand, which you are driving at, if the power alone is involved that is different from the power to create. Now, if they can prohibit conditions through Con

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gress that have a binding effect on the States and the people of the States, then they have jurisdiction over the subject, and that is my understanding of the contention that Congress, while it was supposed to be fair and would operate in a liberal manner, that it nevertheless would have power to control the subject matter, and that would be important.

The CHAIRMAN. I disagree with the Judge; but go ahead.

Senator STENNIS. I just wanted to bring that point up about the negative, and then the affirmative proposition on the qualifications; and I used the labor union there just by illustration. The same thing would apply to a farmers' union; it would apply as far as the Government is concerned.

Judge ETHRIDGE. No State, National Government, under the conditions now prevailing would enact a law of that type, of course. But I am talking about the constitutional power. If they got the power to prescribe the qualifications for voters, then there is no limit to that power except the possibility of the Supreme Court checking it.

I would like to file this.

The CHAIRMAN. We will be very glad to have you do that and make it a part of the record and a part of your statement. (The brief referred to is as follows:)

BRIEF IN OPPOSITION TO HOUSE RESOLUTION 29, THE ANTI-POLL TAX BILL, EIGHTIETH CONGRESS, PENDING BEFORE THE SENATE OF THE UNITED STATES ON BEHALF OF THE STATE OF MISSISSIPPI, BY THE ATTORNEY GENERAL OF MISSISSIPPI

House Resolution No. 29, is entitled “An act making unlawful the requirement for the payment of a poll tax as a prerequisite to voting in a primary or other election for national officers." The general purport of this act is an attempt on the part of the Congress or certain Members of the Congress to set aside State laws which require the payment of a poll tax in order to vote for “President, Vice President, electors for President or Vice President, or for Senator or Member of the House of Representatives, is not and shall not be deemed a qualification of voters or electors voting or registering to vote at primaries or other elections for said officers, within the meaning of the Constitution, but is and shall be deemed an interference with the manner of holding primaries and other elections for said national officers and a tax upon the right or privilege of voting for said national officers." In other words, the Congress is asked to pass this law which would render null and void the provision of any State in its laws or in any municipality in its ordinances from prescribing such qualification as the payment of a poll tax to be a condition of the right to vote. In my opinion, this is an unconstitutional bill and should not be passed or enforced if passed because the Constitution of the United States provides in section 2 of article 1 that: "The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature." The Constitution therefore itself fixed the qualification for voters in congressional, senatorial, and presidential elections. The election of Senators being substantially the same as that for Members of the House of Representatives as contained in the seventeenth amendment to the Constitution which provides: "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for 6 years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures," etc. So, as to Representatives in Congress and United States Senators, the Constitution itself fixes the qualifications of those who vote for members of the State legislature in the most numerous branch of the same.

In order to understand the meaning and purport of these provisions of the Constitution, we must consider the situations and conditions of the country at the time the original Federal Constitution was framed and ratified by the people of the States. At the time the Federal Constitution was adoped originally most